Why All India Judicial Service and reservation in judiciary won’t be a reality in 2019

Supreme Court of India reserved verdict on appeals filed by its own registry on Thursday | Manisha Mondal/ThePrint

Text Size:

15

Shares

The Narendra Modi government, just like its predecessors, is not going to do much.

As it approaches the end of its five-year tenure, the Narendra Modi government has yet again started talking about the need to have an All India Judicial Service (AIJS)—the idea has been around since the ’50s—as well as reservation for scheduled castes (SCs) and scheduled tribes (STs) in the judiciary.

The purpose is clear: lure SCs and STs with the lollipop called reservations. So what if such a thing isn’t legally tenable, unless the Parliament amends the Constitution?

And, with less than three months left before the Model Code of Conduct kicks in for the next general elections, amending the Constitution will be almost impossible. But, the government may have already achieved the result: spread the good news, hinting that reservation in the higher judiciary is on its way and leave the rest to the party faithful.

Though much required, the AIJS is a stillborn concept, with the idea itself facing strong opposition from the higher judiciary—in spite of the fact that the Parliament amended Article 312 in 1976 to incorporate a provision for establishment of the AIJS.

Article 312 (1) says that Parliament can pass an Act to provide for the creation of AIJS while Article 312 (3) says the AIJS can’t include a post inferior to the rank of district judge.

Yet, four decades after the Parliament passed the amendment, the AIJS remains just an idea.

In India, we have a double-tier judicial system: a subordinate judiciary headed by district and sessions judges, who mainly come from the state judicial service whose control vests with the high courts and the state governments.

The appointment of subordinate judges is made by the governor through consultation with the respective state’s high court and the state public service commission.

In 2000, the Parliamentary Committee on the Welfare of Scheduled Castes and Scheduled Tribes headed by BJP leader Karia Munda, in a report, suggested to the government that it take steps to amend Articles 217 and 124 of the Constitution to give adequate representation to the deprived sections in the higher judiciary.

“Judges take oath that they (will) uphold the Constitution and the laws. But the Supreme Court and a few high courts by claiming power over the Constitution practise untouchability and are disobeying the Constitution with regard to Article 16(4) and Article 16(4A),” the report said.

However, nothing has been done to change the status quo and as things stand, barring loud statements, the Narendra Modi government, too, is not going to do much.

1 COMMENT

The AIJS is an idea worth studying further. Not reservations, in either the judiciary or the armed forces. As a general principle, a government should not take momentous decisions so close to the end of its tenure. Electoral considerations can outweigh a concern for the national interest.